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Ramkrishna Vithal Kulkarni Vs. Ramchandra Dattatraya Garaware - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtMumbai
Decided On
Case Number Second Appeal No. 777 of 1928
Judge
Reported in(1930)32BOMLR1093
AppellantRamkrishna Vithal Kulkarni
RespondentRamchandra Dattatraya Garaware
DispositionAppeal dismissed
Excerpt:
.....of a minor can be presented by the minor at any time within three years of his attaining majority.;moro sadashiv v. visaji raghnnath (1891) i.l.r. 16 bom. 536, followed.;ramana v. babu (1912) i.l.r. 37 mad. 186 and prem nath tiwari v. chatarpal man tiwari (1915) i.l.r. 37 all. 638, dissented from.;a decree on a mortgage passed under the provisions of the dekkhan agriculturists' relief act does not require to be made absolute before it can be treated as final and effective.;kashinath vinayah v. bama daji (&); birachand khemchand v. aha lala (1921) i.l.r. 46 bom. 761, s.c. 24 bom. l.r. 269; and suklya v. suklal (1923) 25 bom. l.r. 1214, followed. - - pandharinath .but, whether that be so or not, i agree with my learned brother that as the balance of authority as well as the most..........of the appellant, the original judgment debtor's heir, that if we were to follow the ruling in moro sadashiv v. visaji raghunath ilr (1891) 16 bom. 536 the execution proceedings would be in time. he urges, however, that we should refer the point to a full bench on the ground that the ruling is an old one and that, although it has not been overruled in this court, two other high courts have dissented from it-the high court of madras in mamana v. babu ilr (1912) mad. 186 , and the high court of allahabad in prem nath tiwari v. chatarpal man tiwari ilr (1915) all. 638. he has also pointed out that the decision in moro sadashiv v. visaji raghu-nath was given on a reference at which no party had appeared to assist the court with arguments. mr. gajendragadkar has addressed an able argument.....
Judgment:

Mirza, J.

1. The facts which have given rise to this second appeal are as follows:-On February 4, 1911, a conciliator who was appointed under the provisions of the Dekkhan Agriculturists' Relief Act filed his agreement or award in Court in respect of disputes then existing between the mortgagee and the mortgagor of a certain property. The mortgagee at the time of the award was a minor who died in the year 193 7 being then still a minor without having executed the award which was in his favour. He left a widow, who also was a minor, as his heir according to Hindu law. The widow attained majority in the year 1923, and, within three years thereafter, in 1926 filed the present darkhast for executing the conciliator's award. It is conceded by Mr. Gajendragadkar on behalf of the appellant, the original judgment debtor's heir, that if we were to follow the ruling in Moro Sadashiv v. Visaji Raghunath ILR (1891) 16 Bom. 536 the execution proceedings would be in time. He urges, however, that we should refer the point to a Full Bench on the ground that the ruling is an old one and that, although it has not been overruled in this Court, two other High Courts have dissented from it-the High Court of Madras in Mamana v. Babu ILR (1912) Mad. 186 , and the High Court of Allahabad in Prem Nath Tiwari v. Chatarpal Man Tiwari ILR (1915) All. 638. He has also pointed out that the decision in Moro Sadashiv v. Visaji Raghu-nath was given on a reference at which no party had appeared to assist the Court with arguments. Mr. Gajendragadkar has addressed an able argument before us contending that Section 6 of the Indian Limitation Act does not govern Section 48 of the Civil Procedure Code, and that it should be held that an application for execution, falling as it does under Section 48 of the Civil Procedure Code, would not be saved by Section 6 of the Indian Limitation Act from being time-barred.

2. In our opinion Moro Sadashiv v. Visaji Raghunath has been considered to be an authority in this Court for so long that it may now be regarded as having become an established principle so far as this High Court is concerned, Whatever views the other High Courts may hold on this subject it has not been shown that the view taken in Moro Sadashiv v. Visaji Raghunath is contrary to the principles of natural justice or has caused any undue hardship or inconvenience to parties.

3. The second point urged by Mr. Gajendragadkar on behalf of the appellant is that before applying for execution it was necessary for the judgment-creditor to have applied for and obtained an order making the decree in his favour a decree absolute or final decree. He relies on the rulings in Ramji v. Pandharinath ILR (1918) 43 Bom. 477, 21 Bom. L.R. 56. The rulings of this Court in Kashinath Vinayah v. Rama Daji ILR (1916) 40 Bom. 492, 18 Bom. L.R. 475 Hirachand Khemchand v. Aba Lala ILR (1921) 46 Bom. 761, 24 Bom. L.R. 269 , and Suklya v. Suklal : AIR1924Bom169 are authorities for the contrary proposition. If Ramji v. Pandharinath is to be taken as being in conflict with the rulings in these three cases we would consider that the preponderating weight of authority is on the side of holding, as the lower Court has held, that a mortgage decree under the Dekkhan Agriculturists' Relief Act does not require to be made absolute before it can be treated as final and effective.

4. This appeal, in our opinion, should be dismissed with costs.

Broomfield, J.

5. I agree. I consider that the decision in Moro Sadashiv v. Visaji Raghunath ILR (1891) 16 Bom. 536 is in accordance with the principles of natural justice, and should be followed by this Court on the principle of stare deaisis.

6. As regards the second point, the decision in Ramji v. Pandharinath ILR (1918) 43 Bom. 477, 21 Bom. L.R. 56 appears to have been based upon the peculiar terms of the decree which had to be construed in that case. It was not a decree which came strictly under the provisions of the Dekkhan Agriculturists' Relief Act. It has not been shown to us that the decree with which we are concerned is similar to the one which the Court had to deal with in Ramji v. Pandharinath . But, whether that be so or not, I agree with my learned brother that as the balance of authority as well as the most recent decision in Hirachand Khemchand v. Aba Lala ILR (1921) 46 Bom. 761, 24 Bom. L.R. 269 is in favour of the view which the lower Courts have taken there is no reason why we should differ.


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